Supreme Court strikes down government role in selecting judges

New Delhi - Judiciary, executive rift may rise after SC says collegium system to continue.

The Indian Supreme Court judgement annulling the formation of a National Judicial Appointments Committee (NJAC) has now put the judiciary in direct confrontation with the executive.
The constitutional amendment to form the National Judicial Commission was passed last year by the Modi government and largely supported by all political parties including the Congress.
Following this about 20 states have also ratified this constitutional amendment which was meant to take away the right to appoint judges from the Supreme Court and place it in the hands of a commission which has six members: two seniormost judges, two eminent persons, Law minister, and the Chief Justice.
The eminent person would in turn be selected by the PM, leader of the opposition, chief justice and law minister. The Supreme Court in its judgement has quashed this amendment and stated that the collegium system will continue but will be modified and bettered. The five-judge constitution bench is ruled by a majority 4-1 decision.
While Justice JS Khehar, Justice MB Lokur, Justice Kurian Joseph and Justice AK Goel declared the 99th amendment establishing the NJAC unconstitutional, Justice J Chelmeswar held it was valid.
Parliament now has the option of improving the amendment but it is unlikely that any such future amendment will pass Supreme Court scrutiny thus setting the stage for a continuing judiciary versus executive friction.
Earlier the Chief Justice of India H.L. Dattu had refused to be part of any such appointments commission till the SC court ruled it was legal.
The main reason perhaps that the executive feels it is functioning under the mercy of the Supreme Court is judicial activism. SC actively takes up public interest litigations which are often political interest litigations thus bringing to a halt many government initiatives, rightly or wrongly.
This gives a feeling of being shackled, something which no government is bound to enjoy. For instance this week the Supreme Court ruled that the nodal national identity card called the Aadhar card, introduced by the previous Manmohan Singh government is not compulsory.
This was just an administrative matter and no judicial interference was required. This constant see-sawing between the Executive and Judiciary has been coming in the way of government functioning.
According to senior counsel and Congress Rajya Sabha MP K.T.S. Tulsi , judicial commissions exist in many countries and there is nothing wrong with eminent people who are not politicians or lawyers interviewing and appointing judges. Other eminent lawyers like Prashant Bhushan and a group of lawyers who were petitioners in this case were opposed to executive interference in judicial appointments. They argued that it would hamper the independence of the judiciary.
Though there will be two eminent persons from outside the legal circle in the judicial appointment commission it was feared that they would actually represent the voice of the political class or the government of the day and hence it would amount to political interference.
On the other hand, the collegium of five senior most judges who clears the appointment of new judges was seen as a boys club and a mutual back-scratching association. A judge favoured by one judge would be cleared by the others and the favour returned later. Also in any case there was indirect political interference in judicial appointments.
The standard of the judiciary and the tenor of judgements had plummeted drastically over the years. The Supreme Court has largely had a cloistered middle class mentality towards pressing issues and existed in a moral universe whose diktats were mostly middle class and brahmanical. The question whether the Supreme Court has helped the millions of underclass Indians is valid. Millions today perish in jails without even a trial, while the Supreme Court exists in a glorious cocoon of its own creation cut off from larger pressing realities of a country where income disparities are frightening.
The collegiums system is partly to blame for this. The Supreme Court of today can hardly be recognized from the court where giants like V.R.Krishan Iyer, Chinappa Reddy, and other presided.
The last round in this constitutional battle has not been fired yet.

• India